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Thursday, Oct. 09, 2000

Confidential sources — those who are unwilling to speak "on the record" and have their names revealed — are often both the most useful and the most vulnerable of journalists' sources. What they have to say is often explosive, important, and they typically say it at great risk; these are the reasons they demanded confidentiality in the first place. The confidential source is the whistleblower who risks being fired. She is the staffer who risks being blacklisted forever. Or he is Deep Throat — perhaps the most famous confidential source in our history. These sources risk their lives and careers to provide information to journalists for the public good. Yet the legal protection our system provides them is woefully deficient.

The Legal Requirements For An Order Compelling Confidential Source Disclosure

In most jurisdictions, a journalist may be ordered by the court to disclose a confidential source only upon a "clear and specific showing" that the identity of the source is (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources. Although the wording of this three-part test varies from place to place, the two ideas conveyed are the same — the identity of the source must be crucial to the case and the plaintiff in the case must try all other avenues before resorting to seeking the identity of the confidential source.

These requirements may sound demanding, but in fact they are somewhat less so than they appear. Examining the first prong of the test, it's important to remember that the legal definitions of relevance and materiality are much broader than those we apply in daily life. Thus, facts that one might dismiss in conversation as "irrelevant" or "immaterial" would often still meet the broader legal definitions. Legal relevance, for example, is much closer in practice to what we would think of as "any relevance" than what we would think of as "direct relevance."

The test's second requirement — that the sources' identity be "necessary or critical to the maintenance of the claim" — also sets a lower bar than one might think. Imagine that a plaintiff brings a libel case, complaining that an article said he was in the mafia. Imagine also that the journalist has two sources for the libelous statement — two young men who used to work for the alleged mafioso, but are now trying to lead better lives and shut down the career of their former boss. A judge certainly might hold that knowing the sources' identities is "necessary or critical" to the maintenance of the plaintiff's libel claim — after all, they are the only sources for the very statement that is the crux of the case.

Now, in my opinion, the judge's holding would not be correct. That is because there can be no liability for libel without "actual malice" — defined as "subjective awareness of probable falsity" of the allegedly libelous statement on the journalist's part. And the question of whether the journalist was subjectively aware that the libelous statement was probably false can be fairly assessed without knowing the sources' identity. In my view, it should be enough for the journalist to reveal a general description of the sources (say, "former business associates" of the alleged mafioso) and the substance of what they said, while omitting any details that might give away sources' identity. This information, combined with the journalist's own testimony as to whether he believed the statement was probably false, should provide a strong basis for the factfinder to assess what the journalist thought and decide whether the "actual malice" standard is satisfied. Indeed, since the standard is subjective, one may argue that the journalist's own testimony, and earlier statements as to his beliefs about the story's truth or falsity, are virtually the only relevant information anyway.

Despite these arguments, however, a judge could still deem disclosure of confidential sources "necessary or critical" to the plaintiff's claim. Without this disclosure, the judge might reason that it would be impossible for the plaintiff to take the depositions of the two — and perhaps the only — central non-party witnesses to the case, or to have these witnesses testify at trial. Because the absence of these witnesses would seriously hamstring the plaintiff's ability to put on his case, the judge might conclude that it is fair to say the disclosure of their identities, so that they may be deposed is "necessary and critical to the maintenance of plaintiff's claim." Interesting alternatives to live depositions and testimony that might preserve the sources' anonymity exist — for example, the sources could be deposed with written questions, rather than in person, and could testify behind a curtain or screen — but a judge might not allow them, noting that a jury's ability to assess witness credibility is fundamental to the concept of a trial.

What about the third requirement — that the plaintiff must exhaust all possible other avenues to find the source's identity before seeking a court order compelling disclosure? This requirement is really no more than a cat-and-mouse game, and its imposition is expensive to plaintiffs and often pointless. Suppose the source is one of the survivors of the crash of a small plane — who claimed the pilot, also a survivor, was drunk and caused the crash. To satisfy this exhaustion requirement, the plaintiff would presumably have to depose all the other survivors, asking each if he or she is the source, before the journalist can be compelled to name the source. Thirty-five survivors may mean thirty-four fruitless depositions. The cost may be prohibitive; it is certainly wasteful.

Moreover, when the survivor who is the confidential source is finally deposed, he faces perjury charges if he lies — and if he tells the truth, he is in as bad a position as he would have been had the journalist been ordered by the court to disclose his identity. This requirement forgets that the confidential source protection should belong not just to the journalist, but also — and for better reasons — to the source. The journalist's ability to credibly offer confidentiality may be at stake if he is forced to betray his sources. But for the source, what is at stake might be his very livelihood — or, in the mafioso example, even his life.

A better legal standard would relieve plaintiffs of the burden of deposing everyone under the sun. It would also offer confidential sources protection, in some circumstances, regardless of whether their identity is -- as various courts have put it — "necessary," "crucial," or "critical" to the plaintiff's case. And rather than consisting of three requirements, it would be a simple balancing test.

On one side of the scales, the court should weigh the potential harm disclosure would cause to the particular source at issue (whose identity would be secretly disclosed to the court alone), and, very importantly, the "chilling effect" to potential future similar sources who may not come forward. On the other side of the scales, the court should weigh the benefit to the plaintiff, in litigation, of having the source's identity revealed.

Often this balance — particularly with the chilling effect, a First Amendment concern that militates against disclosure — will mean the source will not be disclosed. In our hypothetical examples above, the protection of the ex-mafiosi certainly warrants continued secrecy; so, I would argue, does the protection of the plane crash survivor who reported the pilot as drunk, because of the public value of the information he provided. And sometimes secrecy will mean the plaintiff won't win his or her case. But that is a price we can live with - we should have justice, but not at any price. Had Nixon sued Woodward and Bernstein for libel, one can only hope Deep Throat would have been protected by the court.

Julie Hilden is a FindLaw Columnist, a freelance writer, and author of the memoir "The Bad Daughter" (Algonquin 1998). From 1996-99, she practiced First Amendment law at the Washington, D.C. firm of Williams & Connolly.

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